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California Legislature CONTENTS Introduction 1 California as a law-and-order state 1 An uneasy pendulum shift 3 The prison-overcrowding crisis 3 A legacy of high costs and problems 3 Major criminal justice reforms 4 2011 – Public safety realignment 4 2012 Proposition 36 – Changes to ‘three strikes’ 4 2014 Proposition 47 – Reducing criminal sentences 5 2016 Proposition 57 – Increasing use of parole 5 2016 – Death penalty repeal fails 5 Considering the ‘Right on Crime’ approach 5 Growing fear about crime 6 What’s next on the horizon? 7 Conclusion 8 About the author 8 were driven by the state’s powerful law-enforcement lobby and “public safety” unions, who appeared at times more R STREET POLICY STUDY NO. 102 interested in protecting their budgets (and creating new July 2017 “customers”) than promoting justice. Not every new proposal is ideal, of course, and California has yet to embrace the kind of wide-ranging reforms in its cor- rections bureaucracy that have been implemented by Texas, for instance. The state also has failed to implement signifi- HOW CALIFORNIA SOFTENED cant reforms to its public-employee pension system and has ITS ‘TOUGH-ON-CRIME’ moved away from outsourcing – measures that could help stretch California’s budget, which is burdened by the high- APPROACH est cost in the nation (total and per capita) for running its prison system. Notwithstanding such costs, California still Steven Greenhut has an astoundingly high recidivism rate of approximately 65 percent.1 INTRODUCTION This paper seeks to place these shifts in historical context. It alifornia has a long history of pioneering criminal- examines a few of the most significant reform policies that justice reforms. From the 1960s to the early 2000s, have passed through the Legislature or been put to voters such reforms mostly toughened the state’s approach through the state’s robust initiative process. As California to handling criminals, with some of the most signifi- goes, so goes the nation. As such, it is worth seeing where Ccant policy reforms implemented at the ballot box. Califor- the state is headed on this significant issue. nia’s past approaches—especially its “three-strikes” law— have become models for other states, although such policies have led to some troubling results. CALIFORNIA AS A LAW-AND-ORDER STATE These days, California has a national reputation as a “deep More recently, as overall crime rates have fallen to levels not blue” liberal state. But on criminal justice issues, it has long seen since the 1960s, the state has led the way both to soften been a bastion of law and order, a place where tough-on- those earlier approaches and to implement innovative poli- crime measures have been sure winners in the Legislature cies that reduce sentences for some offenders. This shift has and routinely approved by voters at the ballot box. Until been driven in part by a prison-overcrowding crisis, but pub- recent years, even Democratic politicians (at least those with lic sentiment has also changed over the years. statewide ambitions) have played to public fears about crime, which resonate in California’s heavily suburban population. Given the high costs—both financially and in terms of civil For instance, in the 1990s and 2000s, California passed the liberties—the state’s incarceration-heavy approach imposed, these changing policies and attitudes are a welcome devel- 1. “Recidivism Rates,” California Innocence Project, 2016. https://californiainnocen- opment. Many of the tough-on-crime approaches of the past ceproject.org/issues-we-face/recidivism-rates/. R STREET POLICY STUDY: 2017 HOW CALIFORNIA SOFTENED ITS ‘TOUGH-ON-CRIME’ APPROACH 1 toughest-in-the-nation “three-strikes law” and other signifi- When Republican Gov. Arnold Schwarzenegger replaced cant anti-crime measures. After California passed its “three- Davis in the historic 2003 recall election,5 he challenged the strikes” legislation in 1994, 12 other states subsequently powerful California Correctional Peace Officers’ Associa- adopted similar legislation that same year and 10 more fol- tion (CCPOA) and began moving inmates in the state’s over- lowed suit in 1995.2 crowded prison system to privately run facilities. By contrast, Davis had granted the guards a 38 percent pay increase (over Indeed, Ronald Reagan was first elected governor on an several years) during the budget crisis.6 anti-crime platform in 1966, setting the stage for decades of related rhetoric by other governors. In one of Reagan’s While these matters dealt mostly with pay and hiring issues, first speeches once in office, on Jan. 16, 1967, he lamented it was nevertheless significant that Schwarzenegger was his state’s high crime rate: “California is the leading state willing to defy a public-safety union that had been largely in terms of major crimes … On a percentage basis, we have getting its way for years, in part due to the perception that nearly twice our share – 9 percent of the population and 17 it constituted the front lines of the crime problem. Indeed, percent of the crime.”3 Accordingly, Reagan later proposed a CCPOA had played to these crime fears and had itself been a wide-ranging package of measures designed to toughen pen- prominent backer of tougher measures and “law-and-order” alties and give local police more power. He even proposed a politicians. new government agency to coordinate crime-fighting efforts. More importantly, an article by The Associated Press and Reagan’s approach largely continued through successive Huffington Post reported that Schwarzenegger “signed leg- administrations. But that ethic arguably came to an apex in islation […] that increased early release credits, made it more the 1998 campaign for governor between moderate Dem- difficult to send ex-convicts back to prison for parole viola- ocrat Gray Davis and Republican Attorney General Dan tions, and rewarded county probation departments for keep- Lungren, who spent the campaign boasting about his law- ing criminals out of state prisons.”7 It was perhaps the first enforcement credentials. Given the public’s views about major policy shift in decades. crime and punishment, it was the one main area where that year’s Democratic gubernatorial and legislative candidates Change intensified when Jerry Brown succeeded Schwar- felt vulnerable. As such, Davis wasn’t about to get outflanked zenegger as governor in 2011. Despite his reputation as a by the right on crime. In a May 2000 article, The New York progressive, Brown’s criminal-justice views have been as Times reported: “As governor, Mr. Davis … insisted he would unpredictable and quirky as many of his other positions. In be harder on crime than anybody” and that “he would give the 1970s, during Brown’s first term as governor, when the judges discretion to sentence 14-year-olds to death; he would state passed tougher sentencing laws, he actually supported let them consider supporting non-unanimous jury verdicts. a key part of that agenda in the form of mandatory minimum Indeed, Mr. Davis said in a televised debate, on issues of law sentences. Commenting on this decision in an interview last and order, he considered Singapore – a country that executes year, Brown told the Mercury News, “Back then, there was a drug offenders – ‘a good starting point.’”4 feeling we should make punishment more certain … There were claims that the parole board was arbitrary and influ- These debate points were somewhat controversial even enced by bias against minorities … There was also a great at the time, but they seem unfathomable after 17 years of skepticism about rehabilitation and a belief that it didn’t hindsight. As violent crime rates in California and across work. Therefore, the only thing left was punishment.”8 It was the country dropped, the public’s and politicians’ attitudes precisely this approach that filled prisons beyond the brim began to change so much that journalists and historians look and had debatable results in terms of fighting crime. back at the anti-crime rhetoric in that debate as something almost absurd. The political winds started to shift shortly thereafter. 5. The recall centered on tax hikes, budget deficits and an electricity crisis that resulted in rolling blackouts. 6. Ben Carrasco, “Assessing the CCPOA’s political influence and its impact on efforts 2. Nicole Shoener, “Three Strikes Laws in Different States,”Legal Match, Sept. 30, to reform the California corrections system,” California Sentencing & Corrections 2016. http://www.legalmatch.com/law-library/article/three-strikes-laws-in-different- Policy Series, Stanford Criminal Justice Center Working Papers, Jan. 27, 2006. http:// states.html. www.sjra1.com/index_files/cjreports/2006%20ASSESSING%20CCPOA%20POLITI- CAL%20INFLUENCE%20AND%20IMPACT%20ON%20REFORM.pdf. 3. Gov. Ronald Reagan, “Statement of Governor Ronald Reagan on Crime,” Jan. 16, 1967. https://www.reaganlibrary.archives.gov/archives/speeches/ 7. Don Thompson, “California Inmate Release: Schwarzenegger Prison Reform Poli- govspeech/01161967a.htm. cies Were Mixed,” The Associated Press/Huffington Post, July 24, 2011. http://www. huffingtonpost.com/2011/05/24/california-inmate-release_n_866189.html. 4. Evelyn Nieves, “California’s Governor Plays Tough on Crime,” The New York Times, May 23, 2000. http://www.nytimes.com/2000/05/23/us/california-s-governor-plays- 8. Jessica Calefati, “California Gov. Jerry Brown vigorously defends Proposition 57,” tough-on-crime.html. Oct. 7, 2016. http://www.mercurynews.com/2016/10/07/jerry-brown-on-prop-57/. R STREET POLICY STUDY: 2017 HOW CALIFORNIA SOFTENED ITS ‘TOUGH-ON-CRIME’ APPROACH 2 AN UNEASY PENDULUM SHIFT state had promised to pay in pensions to police and prison California has always had a complicated relationship with guards hired in response to public-safety fears. crime and punishment. The aforementioned Mercury News interview with Brown focused on Proposition 57, a Those same fears also enabled police officers and guards November 2016 statewide measure that his administration accused of wrongdoing the ability to gain more extensive authored.
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